Highlights

The NLRB filed two more complaints on behalf of employees who were terminated after posting work-related comments on Facebook.

In the complaints, the NLRB alleged that the employee postings constituted protected concerted activity under Section 7 of the NLRA.

Employers should use caution when terminating or disciplining employees who use social media to express opinions about working conditions.  

Following a recent trend, the National Labor Relations Board (NLRB) filed two more complaints on behalf of employees who were terminated after posting work-related comments on Facebook. In the recent complaints, the NLRB alleged that the employee postings constituted protected concerted activity under Section 7 of the National Labor Relations Act (NLRA), and that the related terminations were unlawful and had the intended effect of discouraging other employees from engaging in similar activities. Although the Board has yet to resolve the issue of whether or not Facebook postings constitute "concerted activity," the NLRB's recent activity in this area signals a growing focus on both union and non-union employees' rights to discuss job conditions with co-workers using social media.

The facts at issue in both cases are similar. On May 9th, the NLRB filed a complaint against a New York nonprofit organization and alleged that the organization unlawfully terminated five employees after they "concertedly" complained about working conditions on Facebook. In its May 20th complaint against a Chicago-area car dealership, the NLRB alleged that the company fired an employee because he posted on Facebook "concerns" about how his employer handled a sales event, which purportedly impacted employees' earnings. Hearings in both cases are set to take place in June 2011.

The extent to which Facebook postings may or may not be protected under the NLRA remains to be seen. Notwithstanding, the NLRB's recent complaints should serve as a reminder to all employers that employees—whether unionized or not—are protected against unfair labor practices under Section 7 of the NLRA (which the Board and reviewing courts have interpreted to protect employees' rights to discuss the terms and conditions of employment with co-workers and non-employees). And as social media Web sites, like Facebook, replace the water cooler, the NLRB has stepped up its enforcement where adverse employment actions appear to be tied to online concerted activities.

As a result of this trend, employers should use caution when terminating or disciplining employees for their use of social media to express their opinion about working conditions and the like. Furthermore, care must be taken when drafting handbook provisions such as confidentiality, e-mail and Internet use, anti-fraternization, non-solicitation, blogging and general work rules policies so as not to run afoul of the protections conveyed under Section 7.

The NLRB's press releases regarding the aforementioned cases can be found here and here.